Get Help From An Experienced Sentence Modification Attorney
Depending on your specific circumstances, you may be eligible for an sentence modification if you are currently serving a prison sentence in Indiana for a criminal offense. However, getting your sentence reduced under Indiana Code SS35-38-1-17 will require help from an experienced sentence modification lawyer.
At Lipinski Law, we help individuals obtain sentence modifications throughout Indiana. For a free consultation, we encourage you to call us at 317-605-9223 or complete our contact form. We are here to help.
The Indiana Sentence Modification Process Explained
The Indiana sentence modification process is separate and completely different from a criminal appeal. The desired outcome of both proceedings may be the same, but the court, legal procedures and grounds to be argued are all different.
A sentence modification petition may be filed at any time during the accused’s prison or jail sentence. However, criminal appeals must be filed within strict timelines. Although sentence modifications may seem less stringent initially, this type of relief comes with its own set of restrictions and requirements. Successful arguments require experience, in-depth legal knowledge of Indiana state law, and legal skills that are not available to non-lawyers or attorneys who do not have experience in matters of post-conviction relief.
Sentence modification is one of the most common types of post-conviction relief, but you should not try to navigate the process on your own. To better understand your options, contact Lipinski Law today for a free initial consultation.
Determining Eligibility For Sentence Modification
The Indiana sentence modification statute starts by defining who is eligible and who is not. Indiana law does not allow everyone to modify their sentence. Particularly, you cannot request a modification if the following apply:
- Being classified as a restricted felon under Indiana Code SS35-31.5-2.72. This refers to convictions for certain child molesting offenses or murder.
- Having been convicted of any of the crimes, with some exceptions, listed under Indiana Code SS 35-38-1-17(d). Such crimes include
- Attempted murder
- Voluntary manslaughter
- Involuntary Manslaughter
- Reckless murder
- Aggravated Battery
- Some sex-related crimes
- Robbery at higher levels
- burglary at higher levels
- Possession of a firearm by a serious violent felon
Even if you are classified as not eligible for sentence modification, you can still file a petition. However, there is no guarantee that your request will be granted.
The Sentence Modification Process
The Indiana sentence modification process may look straightforward at first glance. The first step in requesting a sentence reduction or modification is to file the request at the court that issued the sentencing order. If the court schedules a hearing, the court will notify the prosecutor’s office, which must notify the victim if there was one in the case. However, in the following types of cases, the court may rule on a sentence modification request without holding a hearing:
- The prosecutor has signed a written agreement for the requested modification
- The sentenced individual has waived their right to be present at the court’s consideration of the sentence modification request
A sentenced individual can request a modification of their sentence while serving the sentence. In other words, you do not have to take action at trial in order to request a sentence modification later. While timely objections must preserve appeal errors at the trial, you do not need to have previously raised any grounds for a sentence modification.
What Are Grounds For Sentence Modification?
You may request a sentence modification for a variety of reasons:
- New information has been discovered that is relevant to the criminal case
- The sentence was unlawful or incorrect in some way
- While serving your sentence, you completed self-improvement or rehabilitation programs
- Your family will suffer a significant hardship due to the sentence
In deciding whether to grant a request for sentence modification, the court considers many factors. Some of these factors are:
- Has the sentencing range been changed since the sentence was imposed?
- The age of the offender
- If the offender is already terminally ill
- Does the offender have any cognitive impairments
If the court committed a sentencing error or the sentence is unlawful, you may be eligible for a sentence modification. For example, if the abstract judgment is not in accordance with the statute or the transcript from the sentencing hearing, a sentence modification may be possible.
A common reason for a sentence modification request is the successful completion of educational or self-improvement programs during incarceration. For example, you may have made rehabilitative efforts through participation in one or more programs offered by the Indiana Department of Correction (IDOC). Such programs are available in the following matters:
- Education or employment
- Reformative programming for character improvement
- Addiction treatment/recovery
- Treatment/support therapy
Arguments that the sentence imposed is a hardship for the offender’s loved ones may be the most difficult road to sentence modification. Most loved ones will feel a hardship if an offender is removed from their family.
Federal sentencing statute U.S. 3582 applies to individuals serving a sentence for a federal conviction. Code SS 3582 lists the factors that a judge may consider when imposing or modifying a federal sentence:
- There are compelling and extraordinary reasons (such as terminal illness)
- Whether the defendant is at minimum 70 years of age and has served 30 years in prison (with certain requirements)
- Whether the defendant is dangerous to others or their community
Indiana Sentence Modification Limitations
There are limitations to sentence modification in the Indiana sentence modification statute.
Before 2014, a prosecutor’s consent was required to modify an Indiana sentence within one year of sentencing. Since 2014, the “one-year rule” has been repealed, and offenders can request a sentence modification at any stage of their sentences. An offender who is eligible for sentence modification under Indiana Code SS35-38-1-17(j) can still file a petition:
- Only once per 365-day period
- A maximum of two times per consecutive period of imprisonment
Sentence modification may also be barred if the sentence was imposed as the result of a plea bargain.
Modifications And The Effect Of Sentence Reform
Sentence modifications can also be made based on federal or state sentencing laws changes. Sometimes, an offense that was sentenced before the 2014 Indiana sentencing law revisions may have received a longer sentence than what would be allowed under current law. A modification might be necessary in these cases.
In 2014, Indiana’s sentencing laws were updated. Revisions to Indiana’s sentencing statutes changed from a tiered scheme that used letters to one that used numbers. The new law also changed some sentencing guidelines for offenses. These are the new sentencing ranges in Indiana’s revised sentencing law:
Felony Level Sentencing Range
Level 1 Felony 20-40 years, with an advisory sentence for 30 years
Level 2 felony 10- to 30-years with an advisory sentence of 17.5 years
Level 3 Felony 3 to 16 Years with an advisory sentence of 9 years
Level 4 Felony 2-12 years, with a six-year advisory sentence
Level 5 Felony 1- to 6-years with an advisory sentence for three years
Level 6 Felony 6 months to 2.5 Years with an advisory sentence for one year
Sentencing has also been affected by changes in federal law. Examples of relevant changes in federal sentencing laws are:
- On November 1, 2014, the United States Sentencing Commission’s Amendment 782 came into effect. This reduced (by two levels) drug offenses.
- The Formerly incarcerated Reenter Society Transformed Safety Transition Every Person Act (FIRS T STEP) as of 2018, described in a March 19, 2019 article by The Indiana Lawyer. This could make previous sentencing reforms retroactive or reduce drug sentences.